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ENVIRONMENTAL RIGHTS LECTURE 2: Comparative Substantive Rights Professor Mark Poustie, Oriental Scholar, Shanghai University of Finance & Economics Law.

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Presentation on theme: "ENVIRONMENTAL RIGHTS LECTURE 2: Comparative Substantive Rights Professor Mark Poustie, Oriental Scholar, Shanghai University of Finance & Economics Law."— Presentation transcript:

1 ENVIRONMENTAL RIGHTS LECTURE 2: Comparative Substantive Rights Professor Mark Poustie, Oriental Scholar, Shanghai University of Finance & Economics Law School; University of Strathclyde, Glasgow, UK 26 November 2014

2 OUTLINE OF LECTURE 2 Key features of the European (using UK as model) and Indian environmental law systems The respective approaches of the European Court of Human Rights and the Indian Supreme Court to the development of an environmental dimension to substantive and the reasons why such approaches may have been developed and their appropriateness

3 INTRODUCTION TO UK/EURO ENVIRONMENTAL LAW Mix of private law and public law Private law encompasses delict/tort – nuisance, negligence Problems of using private law? Some of the problems of private law can be overcome by public law administrative regulation

4 UK/EURO ENVIRONMENTAL LAW – ADMINISTRATIVE REGULATION Establishment of regulatory agencies Preventive approach through permitting system and imposition of conditions More uniform national or regional approach More objective standards (particularly driven by EU)

5 UK/EURO ENVIRONMENTAL LAW – FRAGMENTATION/INTEGRATION System of administrative regulation often fragmented Separate laws for air, water, waste (eg Control of Pollution Act 1974; Clean Air Act 1956 etc) – reflected at EU level Problems of pollution displacement Multiple regulators Moves towards integration – substantive and administrative Environmental Protection Act 1990; Environment Act 1995; EU Integrated Pollution Prevention and Control Directives 96/61; 2008/1; now replaced by the EU Industrial Emissions Directive 2010/75; EU Water Framework Directive 2000/60.

6 UK/EURO ENVIRONMENTAL LAW – PUBLIC PARTICIPATION Rights of access to information EU Directive on Public Access to Environmental Information 2003/4 (replacing EC Directive 90/313) EU Seveso Directive Control of Major Accident Hazards Regulations 1999 Rights to participate in decision-making EU Environmental Impact Assessment Directive 85/337 (as amended) EU Strategic Environmental Assessment Directive 2001/42 Public law rights of challenge Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998)

7 UK/EURO ENVIRONMENTAL LAW - ENFORCEMENT Administrative regulation largely underpinned by criminal liability Extensive enforcement mechanisms Enforcement problems Very limited rights for individuals to prosecute in some jurisdictions (eg Scotland) Development of compliance strategies Development of alternative methods of regulation to address weaknesses of system of administrative regulation eg economic instruments

8 DEVELOPMENT OF ENVIRO RIGHTS IN EUROPE USING ECHR European Convention on Human Rights (ECHR) Has involved re-interpretation of existing rights ECHR, art 2 - right to life ECHR, art 8- right to respect for home, family life Court seeks to strike balance between community interest and interference with individual rights Narrow rules on standing –’victim’ test

9 EHCR ARTICLE 2 Only one successful case arising out of environmental issues – Oneryildiz v Turkey (2004) 39 EHRR 12 States must not only refrain from taking life but also Ensure the right to life is adequately protected – so a positive as well as negative dimension to the right

10 ECHR ARTICLE 8 Qualified right If right is engaged … Has it been interfered with? If so, was the interference in accordance with the law? Was it in pursuit of a legitimate aim/community interest? Was it proportionate? In assessing whether breach of the positive dimension of rights ECtHR takes similar approach

11 APPLICATION IN ECHR ART 8 ENVIRONMENTAL CASES - 1 Regulation/Enforcement issues Lopez Ostra v Spain (1995) 20 EHRR 277 Guerra v Italy (1998) 26 EHRR 357 Moreno Gomez v Spain (2005) 41 EHRR 40 Taskin v Turkey (2006) 42 EHRR 50 Fadeyeva v Russia (2007) 45 EHRR 10

12 APPLICATION IN ECHR ART 8 ENVIRONMENTAL CASES - 2 Impact of projects/changes to projects Powell & Rayner v UK (1990) 12 EHRR 355 Hatton v UK (2003) 37 EHRR 28 (GC)

13 IMPLICATIONS FOR DOMESTIC PUBLIC ADMINISTRATION Action must be based on law Explicit consideration must be given to which legitimate community interest is being pursued Consideration of which measures could achieve the that interest Which alternative is the one which least interferes with the right? Must be recorded in decision-making processes Enforcement implications? Common law/civil law also developed to be compatible with ECHR See eg Dennis v Ministry of Defence [2003] Env LR 34

14 INDIAN ENVIRONMENTAL LAW - INTRODUCTION Mix of private and public law Law of torts Nuisance, negligence, trespass Problems highlighted by Bhopal litigation Scope of government immunity from tort? Public nuisance – criminal/civil – Code of Criminal Procedure, 1973 – fines, abatement orders, injunctive relief

15 INDIAN ENVIRONMENTAL LAW – ADMINISTRATIVE REGULATION Many superficial similarities to UK/Euro system of administrative regulation Pollution Control Boards established for each state Central Pollution Control Board also established Permitting system, imposition of standards through conditions

16 INDIAN ENVIRONMENTAL LAW – FRAGMENTATION/INTEGRATION Fragmented system – both substantively and administratively Water (Prevention and Control of Pollution) Act 1974 Forest (Conservation) Act 1980 Air (Prevention and Control of Pollution) Act 1981 Environment (Protection) Act 1986

17 INDIAN ENVIRONMENTAL LAW – PUBLIC INVOLVEMENT Very limited opportunities for public involvement until recently Official Secrets Act 1923 Right to Information Act 2005 Originally no rights to participate in decision-making although limited rights developed in context of EIA but now RTIA 2005 Limited opportunities for private prosecution – 60 days notice must be given to Central Government Limitations of this right?

18 INDIAN ENVIRONMENTAL LAW - ENFORCEMENT System of administrative regulation underpinned by criminal liability Pollution Control Boards have extensive powers of inspection and information gathering Enforcement problems

19 DEVELOPMENT OF ENVIRO RIGHTS IN INDIA-1 Environmental dimension to Article 21, right to life developed Right to clean air, water etc Triggered when there are risks to life Both preventive and reactive dimensions Compensation available Very open approach to standing

20 DEVELOPMENT OF ENVIRO RIGHTS IN INDIA-2 MC Mehta v Union of India (Oleum Gas Pollution) AIR 1987 SC 1086 Attayhoya Thangai v Union of India 1990 (1) KLT 580 (Kerala HC) Goa Foundation v Konkan Railway Corporation AIR 1992 Bom. 571 (Bombay HC) Vellore Citizens Welfare Forum v Union of India AIR 1996 SC 2715, (Supreme Court) M C Mehta v Union of India (New Delhi Air Pollution) (1999) 6 SCC 9 (Supreme Court)

21 COMPARISON - 1 Limitations of comparison Formal similarities between UK/Euro systems However, scope of Indian environmental law narrower and more fragmented Lack of participation rights in India until recently Much more severe enforcement issues caused by poor governance, lack of resources and expertise Weaknesses in Indian tort law (state immunity from tort, high case initiation fees, delays) Much wider approach to standing

22 COMPARISON - 2 Successful cases have tended to involve failure to regulate or regulate effectively Cases involving approved projects have been less successful Approach to assessing rights violations is much more structured and systematic under ECHR Breadth of rights jurisdiction in India leads to uncertainty for claimants and respondents Rights litigation seems to be first resort in India Judicial activism is constitutionally problematic Development of stronger public participation rights in India may address these latter issues and help to strengthen public administration

23 A ROLE FOR SUBSTANTIVE ENVIRONMENTAL RIGHTS? Most cases involving substantive environmental rights at national/regional level focus on failure by state authorities to regulate or enforce or enforce adequately, ie a failure to discharge the positive obligations inherent in substantive rights Much more reluctance to uphold challenges in relation to significant national projects where these have gone through relevant national approval procedures Substantive rights litigation might have wider benefits if system of public administration is weak but there may be significant problems if there is too much judicial activism

24 ANY QUESTIONS? Mark Poustie


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